The recent WSJ op-ed by John Chambers (CEO Cisco) and Myron Ullman (CEO JCPenny) is interesting, but largely not compelling. What the article does do is indicate (1) that patent litigation is the monetization avenue being used by non-practicing patent holders and (2) that it is pretty clear that manufacturers and retailers would be better off (at least in the short term) without being charged with patent infringement.
The core of their argument is here:
A 2012 study by Boston University researchers estimated that companies spent upward of $29 billion a year defending patent lawsuits, and the problem has not let up. According to RPX Corp., more than 3,600 companies and named defendants were sued by so-called patent-assertion entities in 2014, triple the number in 2006. Patent-assertion entities—aka nonpracticing entities, or as some would call them, trolls—that own patents but do not make products or sell services based on them file more than 60% of patent litigation in the U.S.
A civil lawsuit generally comes about based upon a failure of the parties to negotiate a just solution. Of course, for any given lawsuit, we don’t know beforehand whether it is the plaintiff or the defendant who is being more unreasonable.
The op-ed suggests that the plaintiffs are to blame for filing the lawsuits, but there is also a strongly compelling case for arguing that the defendants are to blame for refusing to deal and instead fighting every lawsuit tooth-and-nail. When reach a point where out-of-litigation resolutions are rare, we should recognize that it is a systemic problem. And, at this point – where the primary complaint is high litigation costs – the solution is not to favor one side or the other, but instead to look for systemic changes that substantially decrease the cost of resolution.
Gene Quinn provides his take on the op-ed at IP Watchdog.
As both and inventor and a patent attorney, I believe eager Democrats and scared Republicans killed the patent system for the independent inventor. Little guy is frozen out of the system.
Solution?: Set up a royalty board, if a fair royalty is 10% and there are 100 claimants, then rank them and give them each a pro rata share of that 10%.
Washington Post says “Federal agencies will try to boost entrepreneurship.” What a crock. We are back to the 50’s with payola and interests in copyrights.
Who is complaining? Not lawyers. While trolls like Lemelson and Refac have been around for generations, patent litigation has grown from a niche practice area for boutiques to huge profit centers for international firms. Attorneys for plaintiffs and defendants are often best friends.
Manufacturers and retailers may complain when they are accused of infringement, but retailers are generally indemnified by contract or the UCC, and manufacturers often factor a patentee’s projected litigation costs into license or settlement negotiations. Moreover, they don’t seem to complain when they attempt to eliminate competition with patents that may be held invalid or non infringed, or fail to satisfy domestic industry requirements in ITC proceedings.
Universities and research institutions aren’t complaining since licensing revenue is a growing source of funding for basic scientific and technological research, especially in the wake of declining grants from governmental agencies and other sources.
Rather than devote proper resources to patent examination and issue certificates of validity, Congress has shifted the PTO’s burden to the courts and private parties by limiting review of patent applications to a presumption of validity and providing statutory defenses for challenge after issue.
The Supreme Court doesn’t seem to care as it ignores Congressional intent and bickers with the Federal Circuit over fundamental issues of patent law, creating uncertainty and confusion that leads to increased litigation.
The system is broken. Long live the system.
^^^ Now that is writing well with some acidity!
It’s a good post Jai Rho. The only thing I’d say, though, is that we are probably in a different situation than in previous years. Now we face an unending onslaught of money from big corporations like Google that are trying to burn down the patent system. The patent system has been remarkably resilient to the likes of Lemley, Stern, etc., but there are cracks that should cause anyone to worry. And the onslaught is not going to end. The corporations will just keep paying for the next round …
Patent Trolls May Have Key To Unite Obama, Congress
link to news.investors.com
“When reach a point where out-of-litigation resolutions are rare, we should recognize that it is a systemic problem.”
Why do you think that “out-of-litigation resolutions are rare?” How could you possibly know, without some registry of licensing activity?
It may be true that, once suit is filed, it is less likely to settle than it has been in the past, while it may also be true that more patent disputes are resolved with licenses or out-of-litigation resolutions. Do you know of any way of determining if your assertion of rarity is correct?
“The op-ed suggests that the plaintiffs are to blame for filing the lawsuits, but there is also a strongly compelling case for arguing that the defendants are to blame for refusing to deal and instead fighting every lawsuit tooth-and-nail.”
And addressing a recent spate of school yard fights, a grammer school op-ed suggests that bullies are to blame for stealing lunch money from nerds, but there is also a strongly compelling case for arguing that the nerds are to blame for refusing to cough up their lunch money instead of putting up a fight.
I have only defended about a dozen patent lawsuits, but all of them were brought by plaintiffs that had a clear understanding that the accused devices did not infringe, or that the patent was blatantly invalid. In one case, the judge quite explicit: the facts do not matter, and we were stupid to insist on litigating to the correct result.
You want to talk about bias…:
“clear understanding that the accused devices did not infringe, or that the patent was blatantly invalid”
Basically, inequitable conduct and “clear” violation of attorney ethics in bringing “frivolous” suits is the universal experience of this particular person…
I am reminded – as I often am – of another line from the Shawshank Redemption: “we (the accused infringer) are all innocent in here”
Being cynical here, but having read hundreds of articles on this subject from all types of people, it has become clear that guys like Dennis support NPE suits, trolls, love patents, etc., because it makes them important professionally. If patent lawsuits go way down and aren’t perceived as such a big problem to the general public, guys like Dennis don’t get invited to speak places, don’t get invited to submit comments to Congress, don’t get quoted in hundreds of articles–overall their viewpoint is less sought-after and they become much less visible. Their professional status sinks. Anyone who has clerked at the Federal Circuit can tell you this is true; those judges love their junkets and have seen their own notoriety increase as the “patent problem” has increased. You don’t get invited to speak at high priced law school events, or get invited to do OpEd pieces for big newspapers, if there isn’t some “troll problem” that causes the patent problem to be on people’s minds. So that’s why almost every significant patent “reform” initiative in the past seven years (with the exception of damages reform) has come from Congress or the Supreme Court, not the Federal Circuit. This is because guys like Rader knew that he wouldn’t get invited to do all of these cool things if the patent system had the quiet obscurity it enjoyed the 1980s and 1990s.
So with that, it’s hard to read articles like this from Dennis, suggesting that it is defendants who are to blame for patent lawsuits. They should be shelling out the cash for settlements, be happy to do so, Dennis says, because they’re entering into “reasonable” resolutions. Merits be damned.
I have represented companies in hundreds of these suits, since the beginning of the E.D. Texas rise in about 2004, and in the early days, defendants did exactly what Dennis says they should do — they shelled out the cash. Most of them reasoned that settlements were a good business solution because the cost of defending was more than taking a license, even if the patent was invalid or the infringement read was borderline frivolous. Most companies share that thinking today. But most of the bigger companies found that settlements begat more suits, in a vicious cycle (brought by the same lawyers as the earlier suits), so they have now started fighting these suits.
It is wholly irresponsible to suggest that defendants are to blame, Dennis, without taking into account the merits of the suits. Are you suggesting that defendants should be happily shelling out money to license patents they don’t infringe? You’ll probably find that the rate at which plaintiffs are losing cases at trial is a lot higher than it used to be, because most defendants are now putting in the resources to mount a proper defense. Even plaintiffs in Texas are losing cases in large numbers, usually because the cases are meritless and the defendants are now put in the resource to test the cases on the merits.
Pacing Technologies LLC v. Garmin International Inc. (Fed Cir 2015)
Yes, folks, it’s a metronome “on the web.”
A repetitive motion pacing system comprising:
a web site adapted to allowing the user to preselect from a set of user-selectable activity they wish to perform and entering one or more target tempo or target pace values corresponding to the activity;
a data storage and playback device; and
a communications device adapted to transferring data related to the pre-selected activity or the target tempo or the target pace values between the web site and the data storage and playback device.
From the spec: features of the present invention are accomplished, as embodied and fully described herein, by a repetitive motion pacing system that includes . . . a data storage and playback device adapted to producing
the sensible tempo.”.
Ignoring the fact that this claim is a quintessential example of an invalid or ineligible “do it on the Internets” claim that should never have issued, this Pacer Tech LLC operation somehow decided it was entitled to money from a company which markets a system that provides data (<— data=information) about the rate of exercise (e.g., displaying the user's exercise pace to the user) but which does not include a "playback device" that providing a pace-setting tempo (although the use of old technology for setting a pace for any activity has been in the public domain since just about forever and will certainly remain there indefinitely).
Sanctions coming? It would be nice. But patent law is sooooooo complicated, especially when it involves super dooper rocket sciencey stuff like making a repetive beeping noise.
Since you are discussing E.D. Texas patent suit statistics, here is a December blog report for the actual 2014 statistics from a leading local counsel there of those cases that made it to final decisions in 2014 in that leading district for patent suits. It seems to support your view that defendants are doing a better job. [Perhaps in part by using more attorneys with conduct more appropriate for small town Texas judges and jurors?]:
“..over the last two years the Eastern District of Texas was tied at ten plaintiff verdicts and ten defense verdicts, with each side also having one win in the two invalidity-only trials. Then last week Uniloc broke the tie in plaintiff’s favor last with a verdict in the plaintiff’s favor. But yesterday a Marshall jury in Judge Roy Payne’s court rendered a verdict in favor of defendant Samsung in MTC v. Samsung, bringing us even again. (Plaintiff was seeking $132 million). The verdict is of interest for another reason. This was the second MTC case to go to trial in Marshall – last month MTC prevailed against defendant Apple on nine of the twelve asserted claims, winning damages of $23.575 million.
So we end the year with the verdicts evenly split between plaintiff and defendant in infringement cases, in invalidity-only cases – and even in cases involving the same patents by the same plaintiff in the same court with the same judge – but involving products by two different defendants.”
What everyone who cares about a fair patent system should be doing is pushing hard against the broadly accepted definition of troll. A troll should be defined solely as a litigation abuser, NOT as an NPE.
Defining trolls as NPE’s is utterly counterproductive because it rests on a misperception of people who don’t understand the patent system; namely that production of anything makes a difference to IP rights. It does not and it should not.
The entire iceberg of the patent problem is per se software patents. If they were all eliminated immediately and never allowed again, virtually every serious problem in the patent system would go away.
That hardly means patents on mobile systems, networking, etc. etc. etc. would be impossible- it simply means that if the output of a system or method is information alone, it should not patent eligible. If the system or method includes new real-world structure, like a switch or a cell transmitter or a display or a battery, etc. etc. etc. it should be eligible. A self-driving car needs sensors and CPU’s etc. and there would be patents around those systems. Watson should get copyright protection, unless there is dedicated new hardware involved.
We don’t patent art and literature because reasonable minds can always disagree about their meanings and reasonable minds can create myriad different expressions of similar ideas. That’s why software patent litigation more resembles scholasticism rather than any rational process leading to some agreeable truth.
Until the NEW MACHINE fanatics get over their misapprehension of what software really is, and the public gets over their misapprehension of what a patent really means (e.g. makes no difference if you “use” the invention or not to your rights), major, MAJOR injustice and economic crime will continue unabated, and it hurts all of us.
Strongly agree AND strongly disagree with you at the same time Mr. Snyder.
Agree: “Defining trolls as NPE’s is utterly counterproductive because it rests on a misperception of people who don’t understand the patent system; namely that production of anything makes a difference to IP rights. It does not and it should not.”
Disagree: “The entire iceberg of the patent problem is per se software patents. If they were all eliminated immediately and never allowed again, virtually every serious problem in the patent system would go away.”
I suggest that you look into the history of innovation and see the exact same pattern of anti-innovation repeated again and again.
And once again, please leave out the Canard of comparisons to non-useful arts. Such is simply a non-starter, and wrecks – instead of builds – your credibility.
>“The entire iceberg of the patent problem is per se software patents. If they were all eliminated immediately and never allowed again, virtually every serious problem in the patent system would go away.”
This completely ignores the reality of technology. And, it –in effect–is saying that we can’t get the PTO to do its job.
I will remind everyone that our fearless leader Obama picked as the next director a person that has close to zero experience prosecuting patent applications and is being put in charge of 8,000 patent examiners and what about 1,000 other people that do other jobs. So, she has NO experience in what we need improved. Google bucks at work.
Both of President Obama’s PTO Director appointments, including the second one that took too long to get appointed, have had VASTLY more patent law experience than the zero patent experience “duds” appointed by his Republican predecessors. So that is obviously not the source of the patent troll litigation problem and the consequent Republican House rush to new anti-patent legislation, merely a bigot-try.
curmudgeon: my statements are not political. You cast them as political. This is not a choose one political party complaint. My statements are directed toward the current failure to appoint a person that is qualified to be the director. Chen is NOT. And, if you haven’t notice a huge part of the on-going justification for new legislation is that there are many low-quality patents. A person with no prosecution experience is not in a position to help that situation. (I know the arrogance of the litigators and transactional attorneys that think they are better than prosecutors, but in reality neither litigators nor transactional attorneys understand the problems of prosecution.)
Sheesh. Bizarre response to my statements.
if you haven’t notice a huge part of the on-going justification for new legislation is that there are many low-quality patents.
I’ll grant you that Chen is ultimately responsible for some of the recent ones but there is little she can she do about the many thousands that were granted under the watch of her predecessors *except* to make sure that the re-exams and IPRs are conducted competently. As far as I can tell, the PTO is doing a decent job in that regard.
I’m pretty sure that even if Chen took the most reasonable steps in the world to keep the worst computer-implemented patents from ever issuing that would only further agitate her professioal critics.
Was there any point to that post MM? Sounds like a Google sponsored advertisement to me.
Do youse guys really mean Lee? Chen, the Judge, is not to be confused with Chien, the CTO advisor.
You are right Lee. I was thinking of the recent appointment of Chen. Sheesh.
NWPA “The entire iceberg of the patent problem is per se software patents. If they were all eliminated immediately and never allowed again, virtually every serious problem in the patent system would go away.”
This completely ignores the reality of technology. And, it –in effect–is saying that we can’t get the PTO to do its job.
Don’t forget that neither the PTO nor the patent system was set-up to evaluate the patent-worthiness of information or information processing logic.
It’s not even clear whether or how such an evaluation could be fairly and consistently achieved at the level of functional claiming where software patenting proponents insist they belong, much less why anyone should bother with designing a workable evaluation system from scratch.
Certainly there’s no coherent statute or case law telling the PTO how to compare “new” patent-worthy logic or “new” patent-worthy information to the vast, geometrically expanding amount of useful information and logical paradigms in the prior art. On the contrary, every time the CAFC is faced with an opportunity to provide something meaningful we get nonsense. Why is that? Because they are being asked to make absurd judgments against a patchwork quilt of incredibly poorly reasoned, ad hoc case law based on “facts” argued by parties who, in most cases, are both deeply invested in keeping as much aburdity in the system as possible.
Go ahead and listen to the surreal oral “arguments” in Eon Corp IP Holdings versus Companies Who Actually Do Stuff (Feb 2, 2015) where everyone pretends to try to answer the question about how much disclosure of fake structure is required to qualify as sufficiently “solid” to satisfy 112P6 (while remaining completely fake). That’s where we’re at after decades of silliness.
The patent system is meant to adapt to new technologies. That is the point.
And, your “logic” and “information” comments are as usual absurd. Information processing machines have structure, take time to operate, use power, and space.
In fact, the only distinguishing feature between a mechanical machine that you harken back to and an information processing machine is all the bizzarro misinformation you post on this blog everyday.
What is software Night Writer? Not a difficult question. Just define it, please.
All software is essentially a special purpose chip for an information processing machine.
That’s cute Night Writer. Now lets talk about what it means in that real world you are fond of invoking.
“Software is any set of machine-readable instructions that directs a computer’s processor to perform specific operations”
link to en.wikipedia.org
In the real world Martin, a man named von Neumann figured out that rather than building special purpose machines for each information processing task that instructions could be stored in memory like a Turing machine.
Real computer scientist know that software is equivalent to a special purpose computer and that software is a merely a convenience to make it easier for humans to build machines at the expense of a great deal of time loss.
That is the real world.
Interesting. So instead of addressing the root issue – high quality initial patent issuance – the strategy is to continue thehigh flow of junk patents – and, therefore, the need for patent reform – the goal of which is to toss the good and the bad patents out. A Cloward–Piven strategy for breaking the US patent system.
anon: I suggest that you look into the history of innovation and see the exact same pattern of anti-innovation repeated again and again.
There is nothing in the long history of our patent system that remotely resembles what was has been going on for the past twenty years.
leave out the Canard of comparisons to non-useful arts
Nobody’s ever going to stop comparing information and logic in the computational context to information and logic in the non-computational context. Nice try, though.
Being “proud” of being wrong – and being steadfast in being wrong – makes you no less wrong.
Sorry Malcolm, but the utility aspect of what is defined to be software simply IS something that is meant to be covered by patent law.
“And yet it moves”
“anon”: the utility aspect of what is defined to be software simply IS something that is meant to be covered by patent law.
Even if “utility” under 101 includes “capable of providing any iota of information” (a highly dubious proposition), there is much, much more to 101 than “utility”.
As a gentle reminder: it’s 2015.
Judge Rich’s State Street Bank fell over the cliff years ago. Nothing’s left except a few logs bobbing out in the deep sea. Flipper is canceled. Maybe Moby D ck will rescue you?
Sorry Malcolm, squint as hard as I can, I see no legal point in your rhetoric here.
Can you try again?
Perhaps try to be a little more direct (since you don’t like “when I put words into your mouth”)
anon, what could be a more indefinite term than “useful arts” ? Who is to say what is useful from what is not useful? What is the antonym of useful? Useless? Do people spend valuable life energy engaging in useless arts?
Night, since you are a technologist, why don’t you define software for us? I define software as sets of instructions written by authors telling machines how to execute various procedures. How do you define it?
“Do people spend valuable life energy engaging in useless arts?”
Most definitely yes.
The fine arts are full of such dedicated people.
Your problem Mr. Snyder, is simply one of a lack of appreciation for what patent law is meant to cover.
Your continued ig nor ance in this respect is disturbing. Not only on the gen er al level of your contributions to the discussions simply lacking that basic understanding, but as I have often pointed out, your counsel is charged with representing you with informed consent, and your views exhibit an alarming lack of being informed. Your statements then may in fact do you more harm than anything that IBM alone could do.
Very well, so the fine arts are the antonym of the useful arts.
Where do video games fall? They are not a recognized fine art, nor are they useful. How about training films? Useful, but fine arts?
Its YOUR appreciation for what patents are supposed to cover that is warped, not mine.
Legitimate law at some level of abstraction must be a democratic construct. Most people think patents are for “inventions” of “things”. Most people don’t know if software per se is a “thing” or not, but lots and lots of people suspect that it’s not a thing, including apparently the Supreme Court of the United States.
Certainly when the Constitution was adopted software was not considered a “thing”, and yes there was software at the time. Looms and music boxes and certain other “things” were controlled by coded instructions, and those instructions were not considered parts of the item per se.
I can assure you that IBM is jacking me a lot harder than my misc. debates and useless opinions on patent blogs ever will. In fact, in one sense I can thank them for opening my eyes to a world which I would have otherwise never seen, and what I see is deeply disturbing. I hate injustice and rent-seeking everywhere it occurs, and this world is a most fecund environment.
“They are not a recognized fine art, ”
They have been on occasion up this way in DC.
link to smithsonianmag.com
Martin,
The arts traditionally were divided into 3 categories: liberal arts (logic, grammar, rhetoric, arithmetics, etc.), fine arts (architecture, painting, dance, etc.), and useful arts (carpentry, masonry, banking, etc.).
JP, would software then be a liberal art? I can accept that, easily.
You must be one of those software engineers that doesn’t really understand what they are doing.
martin: We don’t patent art and literature because reasonable minds can always disagree about their meanings and reasonable minds can create myriad different expressions of similar ideas. That’s why software patent litigation more resembles scholasticism
Yes.
“Yes”
No.
Mr. Snyder is not an attorney. You, on the other hand, may or may not be an attorney (in real life), but you seek to portray yourself as one on these boards. In that role, you are NOT ethically free to dissemble in your advocacy and mistepresent material points of law and fact.
Fact: software is defined to be a manufacture and machine component, equivalent (and let’s not purposefully conflate “exactly the same as” and equivalence) to hardware and to firmware.
Law: the exceptions to the judicial doctrine of printed matter, which by the way is not limited to software innovation (see the hat band case, see the glass measuring cup case), explicates the proper understanding of the law.
I have explained this to you in simple Set theory, as well as you have volunteered admissions as to your knowing and understanding this controlling law.
And yet you insist on dissembling on these points in your advocacy on this modern social media platform, misguiding those who do not know (and refuse to know) the law.
Congratulations (I guess) on reaching the ninth anniversary of such machinations.
Nine years and running of being something other than America’s leading source of patent law.
Anon,
The functional equivalence between the categories of software and hardware, as recognized by computer scientists, merely indicates that the same data transformations can be accomplished in either approach.
Would you mind explaining the process by which you extend the patent eligibility of computer hardware so as to also include software, seeing as how you just admitted they are different things?
Thanks in advance.
Fact: software is defined to be a manufacture and machine component, equivalent (and let’s not purposefully conflate “exactly the same as” and equivalence) to hardware and to firmware.
Nothing but self-serving, meaningless hooey.
You gave a very similar speech over and over again when you were so sure that “the law” prevented people from comparing claims to the prior art to determine if the claims protected ineligible subject matter. That turned out miserably for you (nobody could have predicted!).
the exceptions to the judicial doctrine of printed matter, which by the way is not limited to software innovation (see the hat band case, see the glass measuring cup case), explicates the proper understanding of the law.
I’m sure glad to know that the viability of software patents rests in part on a pre-Prometheus pre-Alice pre-Bilski case from 1969 written by Judge Rich, a guy who was, at best, completely clueless about the important role that meaningful subject matter eligibility restrictions play in a sane patent system.
“Loser Pays” will increase litigation expenses:
Parkinson’s cousin’s law that says: “the litigation effort expands to a significant percentage of the amount available (in dispute)”.
We are told that to assure winning under “loser pays”, the risk is too high to spare any expense.
Consequently under “loser pays”: “the litigation effort can now be increased to multiples of the amount in dispute … which we are assured that “someone else” will surely be paying”. 😉
This article seems inherently contradictory. On one hand it reports that a disproportionate share of suits are due to trolls, then decries the fact that defendants are fighting “tooth and nail.”
Huh?
Perhaps the unspoken premise of the author is that IP rights, individual rights in intangible property (or perhaps property as such) are invalid. Why fight over something which “should” not exist?
Of course trying to explain, with reasons, someone else’s unreason is probably a fruitless exercise.
Did anyone in WSJ see the irony in the article and ask John Chambers to address Arista Patent Lawsuit?
Cisco sued Arista, citing violations of 14 patents, plus copying of Cisco’s so-called “command line interface,” link to bits.blogs.nytimes.com
What John wants to say is “if you steal our technology we should be able to Sue you”!
BUT
if “we steal YOUR technology then you are a patent troll and getting in the way of our innovation!”
John is asking US Congress to enact a Law saying any multinational company who have a Billion dollar can Sue! Because they have lobbyist and they can give to the congressional campaign.
John Chamber is also saying: If you are an ordinary American / small startup / a University Professor with a good idea and you patent it and eventually USPTO grants you a Patent. And then if you have the audacity to tell the Billion dollar multinational company (that does not pay any taxes in America) that you are infringing on this USPTO patent.
Then US congress should enact a law that helps this Billion dollar multinational company to label your university/small-startup as a Patent Troll in the media!
And then get your patent invalidated in PTAB with multiple proceedings in an Article 1 Tribunal court.
Because US congress and John Chamber knows that the Jury (ordinary Americans / who they think are too stu**d) will not buy your 49 invalidation theories put forth by your So called Expert-Opinion, the expert that John Chambers /Google bought by paying a $500,000 to.
Too much truth for this lot to stomach…
US congress should enact a law that helps this Billion dollar multinational company to label your university/small-startup as a Patent Troll in the media!
It’s simultanously sad and also very, very funny that people seem to believe that the coining of the term “patent troll” is somehow itself responsible for the public’s allergic reaction to NPE’s wielding junky patents that, in nearly every case, should never have been granted in the first place.
It’s the other way around, folks. The reason the term “patent troll” has legs is because it’s an incredibly apt description of the behavior of a certain class of patent attorneys.
The term isn’t going away.
In the meantime, have fun convincing the public that the “Royal Nine” are “out of control” and “anti-patent” because they gave methods of thinking about data or storing it on a computer back to the public. Seriously: knock yourself out. Maybe think about hiring Big Bird or Taylor Swift to help you sell your message to the public. And if that fails you can always start that impeachment campaign, starting of course with those judges who use the term “monopoly” in their patent decisions.
MM ,
Not sure who pays your salary Google, Cisco or One of the PR firms that they hired.
If you cant see the other side of the Coin, there is no reason to engage with you.
Few Bad patents does not mean ALL patents are bad. Tell me why NO One is the whole Patent Reform debate wants to define the term “Patent Troll” who are we talking about ? A university ? small startup ? individual inventor ?
Refusing to acknowledge the PR and Lobbying effort of Google& Cisco is also disingenuous at best.
I can tell by your tone : you have never designed a software system or architecture for NEW information processing.
You are one of those people who “after they are told how to do something” tell everyone it was obvious .. and if they are given a blank sheet of paper .. they have nothing to say.
BTW: before you ask me ..I have been in the Software /coding/ and networking industry for 20+ years. And I have met a few folks like you. Always on a high horse and always copying from others … and never acknowledging other people’s contribution.
Not sure who pays your salary Google, Cisco or One of the PR firms that they hired.
None of them. I don’t like any of those companies and I would never work for a PR firm. So right there is a huge strike against you and your ability to reason. Congrats!
If you cant see the other side of the Coin, there is no reason to engage with you.
I’ve been on all sides of “the Coin” and I’m also a member of “the innovation community.”
Tell me why NO One is the whole Patent Reform debate wants to define the term “Patent Troll” who are we talking about ?
I can’t tell you why because your statement is false. I’ve defined the term in the past. A patent troll is an entity whose profts derive solely from patent assertion, where the patent being asserted is — in nearly every instance — related to information processing or computer technology and where the patent is functionally claimed.
Refusing to acknowledge the PR and Lobbying effort of Google& Cisco
Oh noes! Somebody is lobbying! But the patent maximalists have never, ever lobbied for anything or refused to acknowledge some fundamental logical argument that a 7th grader could follow! Seriously: your hypocricy was transparent back in 2005. It’s ten times more transparent in 2015 when everybody knows how the maximalists reacted to KSR, eBay, Nuitjen, Prometheus and Alice. How do we all know that? In part, because of THESE BLOG COMMENTS which were inundated with patent-worshipping sockpuppets going apeshirt in real time while the vast majority of the saneand reasonable public golf claps and moves on.
can tell by your tone : you have never designed a software system or architecture for NEW information processing.
And I can tell that you have no idea what you’re talking about.
I have met a few folks like you. Always on a high horse and always copying from others
Because only a lazy “copyist” could possibly believe that the thoughtless granting of information processing patents for 20+ years has terribly corroded the patent system. Yes, that makes sense. Sure it does. And I’m being paid by Google. Sure I am.
Electronic Frontier Foundation?
Electronic Frontier Foundation?
Surely that is just a front for Google.
They don’t pay me.
MM,
As you should be able to tell from my comments, I largely agree with you. Especially that there are a large (ok, huge) number of junk patents currently in existence and in the pipeline.
That said, I am somewhat troubled by the incredible expense of asserting a patent.
Of course, what a lot of people here fail to see is that the two are very much related. If the USPTO only granted high quality patents, things like IPR, CBM and a lot of litigation nonsense would be completely unnecessary.
So, those of you that think it should be less expensive to assert a patent, we should all be in favor of eliminating the worst of the worst patents. Once that happens, the entire ecosystem can evolve.
I’ll amend “completely unnecessary” to “less necessary.”
“related to information processing or computer technology and where the patent is functionally claimed”
So If I understood you correctly, according to MM NO patents should be granted for “Information Processing or Computer Technology”? That pretty much covers everything in the IT sector!
So MM according to you
NO patents for Networking, Database, Wireless, Mobile, Operating Systems, Memory, Search, Protocols, and 100 other computer technology areas … because it is all bits (information) going from one end to the other for processing ?
Is that what you are advocating?
As for your comment “A patent troll is an entity whose profts derive solely from patent assertion”
Have you heard of startups that were too early to the market in a technology area, they built the product but failed, After 5 years and 5 million dollars later the only thing a failed startup has is some really good IP.
Now the market has caught on and everyone wants to do the same thing, that they pioneered 5 years earlier. What happens to the investors who invested in that first startup? Should they just give the IP to everyone for free and not try to recoup the investment they made?
Have you heard of startups that were too early to the market in a technology area, they built the product but failed, After 5 years and 5 million dollars later the only thing a failed startup has is some really good IP.
I am trying not to laugh.
> “A patent troll is an entity whose profts derive solely from patent
> assertion, where the patent being asserted is — in nearly every
> instance — related to information processing or computer
> technology and where the patent is functionally claimed”
Not sure I agree with the last part of this definition, because I think “trolling” is more related to the business model of the entity than the types of patents they assert. Information processing happens to be the area where so many of these “troll suits” come from, but if there were large numbers of available patents in other areas like medical devices, the “trolls” would be asserting those too.
But it’s annoying to see all of this 2008-era thinking about debating the definition of a “patent troll,” an inquiry that is perpetuated by NPE proponents to try to point out some kind of hypocrisy in the way the term is applied by proponents of reform. NPE proponents and patent cheerleaders like to pretend it’s really hard to define a “troll” with any precision, because that makes it look like there’s not really a problem here.
But in the end, MM is right — it’s actually very easy to identify the entities that people regard as trolls. Does the entity derive most or substantially all of its revenue and operating capital from asserting patents in litigation? If the answer is “yes,” that entity is probably one that every reasonable person would agree is a “troll,” and it would exclude universities, true research institutions (not fake ones like IV), and legitimate individual inventors.
That’s why troll is a much better term for these problem entities than “non-practicing entity,” because lots of entities that are not trolls, like universities and big companies, may not technically be practicing their patents anymore for various reasons (research, product evolution, etc.), but most would agree shouldn’t be branded with the troll/NPE label.
Brian, I’ve been on this blog for 10 years as has MM. During that 10 years MM’s rhetoric has matched the judicial activist and anti-patent movement point by point.
He spends about 40 hours a week blogging on this blog and others.
Think piece:
311(b) SCOPE.—A petitioner in an inter partes review may request to cancel as unpatentable 1 or more claims of a patent only on a ground that could be raised under section 102 or 103 and only on the basis of prior art consisting of patents or printed publications.
Are patent applications printed publications or patents?
Applications are of course printed publications when they are published. But I suspect your real question is as to using the filing date benefit of published applications for prior art purposes, not the effect of their publication date?
Paul, you got it.
The phraseology of the statute seems to require that applications be treated as publications. I daresay that the drafters did not intend this, but the statutory language is mandatory in its nature.
I wonder if anyone has raised this issue in an appropriate case?
You don’t think “only on a ground that could be raised under section 102 or 103” implies the applications would be used as of their priority date (even if the applications are considered “printed publications”)? To me, it seems like a tough argument to make.
PatentBob, if an application qualifies only as a printed publication, then it is good only as of its publication date.
I was just listening to the oral argument in Suprema v. ITC — it concerns an ambiguity in 337 that speaks to “articles that infringe.” But, under 271, it is not articles that infringe, but acts of people that infringe.
Here the statute on its face is clear. Can there nevertheless be an ambiguity?
ONLY patents and printed publications seems very clear.
Ned, that same language has been in the ex parte* reexamination statute since 1980, in Section 301, and it seems strange that in the entire subsequent time period since most U.S. applications have been published that no one has ever sought to question the effective prior art date of a published patent application in a reexamination as being limited to its publication date? Those 18 months could be critical for fast moving technology.
*[Different language was provided for inter partes reexaminations.]
BTW Ned, I think a simple way to deal with this is to simply say that a printed patent application is a unique form of printed publication for which its effective prior art date has been legally defined in 102 as its filing date rather that just its publication date.
Parties are more inclined to settle a lawsuit when they are in roughly equivalent positions (e.g., competitors in a particular market) and there are opportunities to “log roll” and discover mutually beneficial outcomes that avoid future lawsuits.
When a plaintiff has invested nothing except money and/or legal fees to obtain its patents (because no other skill is required) and when the sole purpose for existing is to file lawsuits on those patents, the people targeted by that plaintiff are not going to be inclined to cooperate.
This should be incredibly easy for everyone to understand. People who dont understand it generally suffer from an warped sense of entitlement and an even more warped view of their importance in the “promotion of progress.” More specifically, people who don’t undertstnd this are typically patent lawyers directly invested in the status quo and directly invested in any changes to the system that make it easier — always easier — to obtain and enforce patents, regardless of how that impacts the patent system generally or the public at large. Call the grifters, call them bottom-feeders, call them trolls. They aren’t going away but if you don’t point them out when you see them, they will do whatever they can to get money out of your pocket and into theirs.
Sole purpose is to file lawsuits?